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Wills > Wills > Flashcards

Wills Flashcards

1
Q

Will Execution

A
  1. Must be in writing;
  2. Signed by the testator;
    -Another person may sign for the testator only if
    at T’s request and in T’s presence;
    -T must sign in the sighted presence of the
    witnesses or T must acknowledge his/her
    signature to other signature to witnesses;
  3. ATTESTED by There must be attested by 2 or more competent witnesses
    -Witnesses must sign in the presence of T (but,
    don’t have to sign in the presence of each
    other)
    -If witness is a devisee under will it is still valid
    but there must be at least 2 other non
    interested witnesses for witness to receive
    his/her legacy
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2
Q

Publication of WIll

A

No need for the individual to know that what they’re witnessing is a will signing.

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3
Q

Self Proved Wills

A
  • At time of execution, T and Ws sign self-proving affidavit under oath before notary public reciting all elements of due execution. If done formalities of execution conclusively presumed - rebuttable presumption under GA law
  • Not required, but the will may be admitted to probate without testimony from the witnesses if the will is self-proved.
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4
Q

Express vs. Implied Revocation

A
  • Express revocations become effective IMMEDIATELY

- Implied revocation become effective only at TESTATOR’S DEATH

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5
Q

Partial Physical Act Revocation

A
  • NO PARTIAL REVOCATION BY PHYSICAL ACT IN GA.
  • If testator attempts to partially revoke by physical act courts will either:
    (1) disregard the cancellation if done to non-material portion, or
    (2) find that will has been entirely revoked if cancellation was done to material portion of the will.
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6
Q

Revocation by Operation of Law

A
  1. Birth or adoption of a child - child can receive an intestate portion of the estate
  2. Subsequent Marriage - the new surviving spouse is entitled to intestate portion unless (by showing of clear and convincing evidence) T contemplated future marriage
  3. Divorce or Annulment - All provisions in favor of the former spouse are revoked and he/she is treated as if predeceased.
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7
Q

Presumption of Lost Wills

A

If the will is traced to the possession of T and cannot be found at T’s death, the presumption arises that the will was revoked through physical act. The burden is on the proponent to show that, by a preponderance of the evidence, no physical act of revocation was intended by T.

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8
Q

Implied Revocation

A

This occurs whenever a codicil or a valid subsequent will does not expressly revoke an earlier will, but nonetheless contains inconsistent provisions.

When this occurs:

  • To the extent possible, the provisions of the earlier will and the subsequent will are read together and both provisions are given effect.
  • If completely inconsistent, then the later will be given effect.
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9
Q

Pretermitted Spouse

A

Operation of Law revocation -

GA - Where T marries after executing a valid will, the omitted spouse will take an intestate portion of the estate.

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10
Q

Pretermitted Child

A

Operation of Law revocation -

GA - Where T has a child after executing a valid will, the omitted child will take an intestate portion of the estate.

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11
Q

Effect of Divorce or Annulment on Will

A

GA - if T executes a valid will and then divorces, the gifts to the spouse will be revoked unless there is proof that they executed the will in contemplation of divorce.

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12
Q

Revival of Will by Destruction of Revoking Instrument

A

There is no automatic revival of a revoked will by the destruction of the revoking instrument. The first will is ONLY REVIVED if all of the SURROUNDING CIRCUMSTANCES indicate that T intended, by the revoking instrument, to revive the first will.

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13
Q

Dependent Relative Revocation

A

-Has nothing to do with dependent relatives!!!
-An equitable remedy.
Allows the court to disregard a physical act revocation if
1) that revocation was based on a mistake of law or of fact and
2) mistake would not have occurred BUT FOR the testator’s mistaken belief that another disposition of property was valid
*** For DRR to be applied the disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed, to do than would intestate distribution.

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14
Q

Explaining Ambiguities and Mistakes in Will Through Extrinsic Evidence

A

Patent and Latent Ambiguities may be explained through extrinsic evidence.

Mistakes: Plain language cannot be corrected with extrinsic evidence. Only exception is when a parent omits a child because they think they’re dead. (Child would then share equally with other children or take an intestate share if only child)

Example: I give nothing to my daughter because I already conveyed to her my house.” The deed is then found in parent’s house and wasn’t delivered to daughter. The daughter still does NOT take!

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15
Q

Incorporation by Reference

A

If a document is in existence AT THE TIME the will is executed, then that document may be incorporated by reference into the will even though it is not part of the will itself.
Requirements:
1. the writing must have EXISTED at the time of will execution;
2. The will must manifest INTENT to incorporate the document; and
3. The will must REFERENCE the document SUFFICIENTLY to permit its identification.

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16
Q

Act of Independent Significance in Will

A

If there is an event that has lifetime significance other than that recited in the will, it may allow for a valid transfer under the will even though not specified.

Example: The car of which I am possessed at the date of my death to Tom McCraw.” - The car may continue to change since it has independent significance.

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17
Q

Anti-Lapse Statute

A
  • Provides a substitute beneficiary for the predeceased beneficiary. Applicable IF:
    1. The predeceased beneficiary is survived by issue and the issue also survive T; and
    2. There is no contingency language in the will preventing application of the statute. (i.e., “if beneficiary survives me”)

ONLY APPLIES TO WILLS. The predeceasing beneficiary does NOT have to be a relative of the decedent testator.

18
Q

Anti-Lapse Statute with Class Gifts

A

GA - DOES APPLY TO CLASS GIFTS! - allows issue of predeceasing beneficiaries to take as substitute takers

19
Q

Anti-Lapse Statute When Beneficiary Has No Surviving Issue

A

If beneficiary doesn’t having surviving issue, the residuary passes to the other residuary beneficiaries.

20
Q

Order of Abatement

A

When the estate contains insufficent assets to pay all claims, taxes, expenses, and to satisfy all testamentary gifts, some of the gifts must be reduced or “abated.” Absent express intent by testator gift abate in the following order:

  1. The property charged with debts by the terms of the will;
  2. The residuary estate;
  3. General testamentary gifts (which abate pro rata);
  4. Demonstrative gifts (which abate pro rata); and
  5. Specific legacies

***For payment of testator’s debts, GA treats realty and personal property equally liable.

21
Q

Ademption by Extinction

A

Applies ONLY to SPECIFIC gifts. Where the testator no longer owns the property to be devised, the property is adeemed by extinction.

**If a SPECIFIC devise is lost, stolen, or destroyed in the six months prior to T’s death, the beneficiary is entitled to the insurance proceeds (Same rule for condemnation awards)

22
Q

Ademption by Satisfaction

A

If T makes a specific, demonstrative, residuary, or a general bequest in a will to a named person, and DURING LIFETIME, makes a transfer to this same person and in the will or in a CONTEMPORANEOUS WRITING, declares that the transfer is in satisfaction of the bequest in the will, then the will bequest will be treated as satisfied.

**The writing stating that the gift is in satisfaction must be executed within 30 days of the transfer, or by the recipient at any time.

23
Q

Ademption by Extinction

A

If specific gift made by testator is no longer owned by testor when will executed the specific bequest is ADEEMED BY EXTINCTION

24
Q

Accessions

A

Where T gives away gifts in the will, but owns something slightly different at probate:

Stock Splits - go to the legatee under the form/substance rule.
**IF THE SAME SUBSTANCE, THEN THE SAME PERSON WILL GET THE GIFT.

*Cash dividends, stock dividends, and income all go to the general estate, not the legatee.

If it is a general gift (ex: “100 shares of common stock”), the beneficiary will take 100 shares of any stock T has at death.

25
Q

Exoneration

A

Where debts on property devised in a will are paid off by funds from the estate.

Both CL and GA Law - Real property and personal property specifically bequeathed carries a rebuttable presumption that T intended the beneficiary to take the property free of any encumbrances.

26
Q

Conditional Wills

A

-One which expressly provides that it shall be operative only if some condition is satisfied. Conditions must be EXPRESS!!
-However, language that reads like a condition may be interpreted by the court as merely expressing the motive or inducement for making a will
ex. “I’m going on a trip, if anything happens to me there I want my property disposed in following order . . .” Dies 5 years after returning from trip.Should will be admitted to probate? - Argue both ways
Against - lack of intent as a true will
For- Intestacy avoided and the fact testator preserved the document

27
Q

Grounds for Will Contests

A
  1. Lack of Testamentary Capacity:
    a. must be 14+,
    b. understand the nature of the act she was doing,
    c. comprehend the character and extent of the property,
    d. know the natural objects of her bounty; and
    e. understand the disposition she was making.
  2. Insane Delusion - T Is otherwise sane but the will is a product of an insane delusion, having no basis in fact or reason
  3. Undue Influence
  4. Fraud - intentional misrepresentation of a material fact to T, and that but for that misrepresentation the subsequent injury of the heirs would not have occurred. FRAUD VOIDS THE WILL
28
Q

Undue Influence

A

Must prove:

  1. Existence and exertion of influence;
  2. Effect of which is to overpower the will of the testator and destroy the testator’s FREE WILL; and
  3. The result of the undue influence is a will that would not have been executed ABSENT the influence.

*** Burden of proof is upon the contestant of the will unless someone in a CONFIDENTIAL RELATIONSHIP with the testator receives a substantial benefit under the will. Then a presumption of undue influence arises that must be rebutted

29
Q

No Contest Clause

A

In Torrerem Clause

  • States that if a person who takes under the will subsequently contests the will, then the person will lose the bequest.
  • This is valid in GA so long as there is a direction in the will as to where the property will go in the event of a contest.

(Courts don’t like these - they get around them by characterizing the challenge as something other than a “contest”)

30
Q

Will Construction

A

The Court looks to the 4-corners of the document to determine the testator’s INTENT.

  • The court prefers property to pass under the will as opposed to intestacy. They will construe the will in favor of passing according to the will’s terms.
  • If two provisions are inconsistent and cannot be given effect together, the latter will prevail.
  • Courts, however, will choose the provision (first or last) that devises the greater estate and leaves less to pass by intestacy.
31
Q

When Are Missing Individuals Presumed Dead

A
  • A person is PRESUMED dead if they have not been heard from in 4 years.
  • An individual may be PROVED dead if missing for 12 months.
  • If proved dead, the Probate Court can administer the estate as if they were dead.

*New rule - if deceased was subject to specific peril (e.g., 9/11), they can be proven dead at ANY TIME by clear and convincing evidence.

**If decedent’s heirs can’t be found after diligent search for a period of 4 years, the decedent’s property escheats to the county board of education in the county of the deceased’s domicile at death

-If not concluded person dead (ex. hostage) Probate Court may appoint a conservator to manage the individual’s estate

32
Q

Hotchpot

A

When an advancement has occured, the decedent’s estate (“hotchpot”) is determined by adding to the decedent’s actual estate the value of the advancement at the time it was made.
ex.
Decedent’s Estate: $340,000
Advancement to prospective heir: $80,000
Hotchpot: $420,000

33
Q

Rule for Interested Witnesses

A

-If a witness is also a beneficiary under the will, the witness is still competent to be a witness, but the witness will not take the gift under the wil unless there are at least 2 other subscribing witnesses who are not interested.

34
Q

Proxy Revocation by Physical Act

A

To be effective revocation must be by the physical act of another person and must be:

  1. At the testator’s direction (presence)
  2. With the testator’s intent to revoke
35
Q

How to Accomplish Republication of Will

A

A will that is revoked may be republished by one of two ways:

  1. A codicil properly executed and annexed to a revoked will, or
  2. Any writing executed with all of the formalities required for a will may also operate to republish
36
Q

Witness Capacity

A

Witness Capacity

i. Must be in presence of the testator as they sign or T must acknowledge signature in their presence
ii. Must be over 14

37
Q

Required Testamentary Capacity for Will

A
  1. At least 14 years old
  2. Knowledge of the contents within the will
  3. Mental Capacity - must understand and know the nature of the acts performing at the time of execution
    * **Evidence that testator is old and senile is not enough. Burden is on the proponent of the will that it was made freely and voluntarily.
38
Q

4 Types of Gifts

A
  1. Specific - IBM computer
  2. Demonstrative - general amount that identifies a particular stock - $400 in IBM stock
  3. . General - money
  4. Residuary - gifts from the estate after all other expenses and gifts are made
39
Q

Priority of Claims/Expenses Against Estate

A
  1. Year’s support
  2. Funeral expenses
  3. Medical expenses of decedent’s last illnes
  4. Taxes or other debt due to the US gov’t
  5. Judgments, secured interests, and other liens
  6. All other claims
40
Q

Attestation Clause

A
  • Well drafted will includes one
  • Clause appears immediately below the testator’s signature line and above the signature line for the witnesses
  • Simply recites requirements for a duly executed will
  • Not required but creates rebuttable presumption the will was properly executed

Wills (5 decks)

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